THE REPUBLICAN COMPANY vs. APPEALS COURT & others. [Note 1]

CORDY, J. The petitioners, a newspaper publisher and a party to a civil action against Richard R. Lavigne, one of the respondents, seek access to certain material submitted to the Superior Court by the State police and the district attorney's office in support of a search warrant issued in 1993 in furtherance of a murder investigation. Lavigne was the subject of the investigation and of the warrant. The material sought has been kept from public view pursuant to an impoundment order entered shortly after the time the warrant issued. The question before the court is whether a litigant seeking to terminate a previously entered order of impoundment bears the burden of demonstrating that circumstances have materially changed since its entry. We conclude that a litigant asserting a nonfrivolous challenge to an order of impoundment bears no such burden, and that the burden of justifying the continued impoundment of court records remains on the party seeking such impoundment. Because the Superior Court judge applied the correct legal standard to the request to terminate the impoundment order in this case, we affirm his modification of the order and release of the material.

Background. This case has its roots in suspicions -- some proven, some charged, and some more privately held -- regarding Lavigne and his relationships with a number of young individuals to whom he ministered as a priest in the Roman Catholic Church. Lavigne has long been a suspect in the homicide of Daniel Croteau, a thirteen year old boy whose body was discovered in the Chicopee River on April 15, 1972. The history of that investigation is not relevant to the disposition of this case except to note that in September, 1993, on application of police involved in the investigation, a judge in the Superior Court issued a search warrant authorizing the taking of a sample of Lavigne's blood for testing against blood found along the bank of the Chicopee River where Croteau's body was found. To date, thirty-two years after the homicide and almost eleven years after the search warrant was issued, no charges have been filed against Lavigne or anyone else.

Since 1972, Lavigne also has been the subject of civil and criminal charges of sexual abuse. In 1992, he pleaded guilty to one count of indecent assault and battery on a child, and one

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count of indecent assault and battery on a person over fourteen years of age, receiving suspended terms of incarceration and a ten-year term of supervised probation. In 2002, John Doe, petitioner in this case, filed a civil action against Lavigne and against Lavigne's superiors in the Catholic Church, alleging acts of sexual molestation by Lavigne and failure by his religious superiors to prevent those acts. That civil action is ongoing, and has been consolidated for discovery, motions, and pretrial proceedings with nineteen similar civil actions, including twelve others brought against Lavigne.

a. Original impoundment order. In conjunction with the issuance and return of the 1993 search warrant, the Superior Court judge allowed, in part, the district attorney's motion to impound certain material relating to it, including an affidavit and supporting documents submitted by a State trooper, legal memoranda, and those portions of the court's decision that referenced sensitive material. [Note 2], [Note 3] By its terms, the impoundment order was automatically to dissolve "at least as early as the conclusion of any criminal proceedings that may result from the . . . investigation, unless dissolved or modified at an earlier date by further order of th[e Superior C]ourt."

b. The 1996 modification. The impoundment order remained in effect until 1996 when, on motion of The Republican Company (Republican), the judge modified his order and made all of the material available, subject to redaction of certain personal information. That modification was based on the judge's findings that the investigation of Lavigne essentially

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had been terminated, that the impact of publicity on jury selection in other cases that might involve Lavigne could be addressed adequately through jury voir dire, and that impoundment was no longer justified. The district attorney and Lavigne appealed to a single justice of the Appeals Court, who reversed in part and affirmed in part the Superior Court judge's modification order. [Note 4] The ruling of the single justice was not appealed further.

c. The 2003 modification. In February, 2003, John Doe filed a complaint in the Superior Court seeking to terminate impoundment of the remaining material. Republican was permitted to intervene, and filed a motion to be heard in support of the complaint. After a hearing and a "line-by-line" inspection of the material, a different Superior Court judge [Note 5] modified the impoundment order "to release most of the materials, excepting the names and addresses of private individuals who furnished highly personal information to the investigators," as "neither the District Attorney nor Lavigne has shown that good cause exists . . . for continued impoundment." In reaching this conclusion, the judge rejected the district attorney's principal argument for continued impoundment -- that the investigation of the Croteau homicide was ongoing and might be compromised -- and found that the long and very public history of the investigation diminished the risk that further disclosure could appreciably alter the outcome of it. As in 1996, the district attorney and Lavigne appealed to a single justice of the Appeals Court, who, concluding that the petitioners had made "no showing of any materially changed circumstances affecting the need for ongoing impoundment," determined that the judge's modification order was an abuse of discretion, and generally

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reversed it. [Note 6] The petitioners appealed to a single justice of this court, who reserved and reported the case without decision to the full bench.

Discussion. "It is desirable that [judicial proceedings] should take place under the public eye . . . because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-509 (1984) (openness enhances appearance of fairness essential to public confidence in criminal justice system). Consistent with this principle, Massachusetts has long recognized a common-law right of access to judicial records. See, e.g., Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977).

With regard specifically to material relating to the issuance of search warrants, "[s]ociety has an understandable interest not only in the administration of criminal trials, but also in law enforcement systems and how well they work[, and has] legitimate concerns about methods and techniques of police investigation . . . ." Matter of Application & Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir.), cert. denied sub nom. Hughes v. Washington Post Co., 500 U.S. 944 (1991). In Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 631, 637 (1988), cert. denied, 490 U.S. 1066 (1989), this court held that although there was no right of access under the First Amendment to the United States Constitution to search warrant materials, under the common law and G. L. c. 276, § 2B, [Note 7] the public

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has a presumptive right of access to affidavits filed in support of search warrant applications once the warrant is returned.

The public's right of access to judicial records, including transcripts, evidence, memoranda, and court orders, may be restricted, but only on a showing of "good cause." Boston Herald, Inc. v. Sharpe, supra at 604. Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, supra at 631-632. "To determine whether good cause is shown, a judge must balance the rights of the parties based on the particular facts of each case." Boston Herald, Inc. v. Sharpe, supra. In so doing, the judge "must take into account all relevant factors, 'including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason for the request.' " Id. at 604 n.22, quoting rule 7 of the Uniform Rules on Impoundment Procedure. The exercise of the power to restrict access, however, must recognize that impoundment is always the exception to the rule, and the power to deny public access to judicial records is to be "strictly construed in favor of the general principle of publicity." [Note 8] Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950). [Note 9]

Once entered, an impoundment order remains an interlocutory

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order, subject to the continued existence of "good cause." See, e.g., rule 8 of the Uniform Rules on Impoundment Procedure (2004) (requiring orders of impoundment to be time limited); Boston Herald, Inc. v. Sharpe, supra at 605 (indicating that impoundment cannot exceed narrowest requirements justified by good cause). The presumption of public access to the records that such an order temporarily shields from view remains intact and does not dissipate on the order's entry. Cf. Press-Enterprise Co. v. Superior Court, supra at 507-509 (continuing value in disclosure of records regarding criminal proceedings); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 791-792 (1st Cir. 1988), cert. denied, 488 U.S. 1030 (1989) (criticizing application of higher standard to modification of protective order entered on initial showing of good cause). Accord Matter of Application & Affidavit for a Search Warrant, supra at 330-331 (continuing value in disclosure of previously sealed material). Unlike other orders and judgments, an impoundment order carries no continuing presumption of validity to sustain it against a proper challenge subsequently brought. [Note 10] A party seeking the release of impounded court records does not bear the burden of demonstrating either that there

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has been a material change in circumstances or that whatever good cause may once have justified their impoundment no longer exists. The burden of demonstrating the existence of good cause always remains with the party urging their continued impoundment.

A "proper challenge" to the continued validity of an impoundment order is raised whenever the party seeking to modify the order comes forward with a nonfrivolous reason to do so. See, e.g., Pansy v. Stroudsburg, 23 F.3d 772, 790 (3d Cir. 1994). Once such a reason is before the court, [Note 11] the obligation of the motion judge is to apply the same balancing test used in determining whether to grant an impoundment order in the first instance. See, e.g., Boston Herald, Inc. v. Sharpe, supra at 608-612; Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, supra at 632-634; George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985).

The respondents' concern that a party who has secured impoundment on Monday afternoon should not have to return to court on Tuesday morning to make the same case once again is understandable. However, we are confident that judges will be able to separate frivolous, repetitive, or harassing motions from those that are not, and that parties who have secured impoundment for a certain term will not during that term be required repeatedly to make their case absent a real possibility that the good cause that once supported impoundment has in

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some manner become less pressing. [Note 12] Such screening is a consummate function of trial judges.

Turning to review the modification order in this case, we note that, "[w]hile [our] focus . . . should be on whether the single justice of the Appeals Court erred . . . resolution of that inquiry might require [us] to look . . . at the underlying order of the judge in the trial court, to see whether there was an abuse of discretion or error of law when evaluating the competing interests and issuing the order [modifying] impoundment . . . ." Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000). We conclude both that the single justice of the Appeals Court committed an error of law by requiring the petitioners to demonstrate a material change in circumstances since entry of the order of impoundment, and that the Superior Court judge applied the correct legal standard and did not abuse his discretion in finding that good cause for impoundment no longer existed.

In brief summary, the Superior Court judge, after conducting a meticulous in camera inspection of the impounded material, found that in light of Lavigne's long-known status as a suspect in the investigation into Croteau's death, the three decades of investigation that have passed, the privacy protection available to individual witnesses through redaction of identifying names and addresses, the climate of broad public disclosure of sexual abuse by members of the clergy, the publication of details of the investigation into Croteau's death that already has occurred, and the mechanisms of voir dire and change of venue that are available to protect Lavigne's right to a fair trial, [Note 13] the district attorney's and Lavigne's interests in continued impoundment,

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though legitimate, were weakened. Balancing this weakened interest in impoundment against John Doe's and the public's interests in learning of Lavigne's alleged patterns of sexual abuse, of Lavigne's superiors' knowledge of and actions with regard to Lavigne's abuse, and of the government's thus-far unsuccessful investigative efforts into the circumstances of Croteau's death, the judge then concluded that good cause sufficient to justify further impoundment no longer existed. We cannot say that the judge erred in any respect. We therefore affirm the judgment of the Superior Court. [Note 14]

So ordered.